HKSAR v. Au Kin Wai

HCCC 270/2018

[2019] HKCFI 1938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 270 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Mr Au, you pleaded guilty to two counts of trafficking in heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, before the Eastern Magistrates’ Court on 27 August of last year, and you confirmed that plea on 16 April of this year. The Summary of Facts which form the basis of that plea was read out to you at that time and you have confirmed them.

Both counts relate to 23 January of 2018, when you were intercepted in a common area outside Mei Tak House on the Mei Tak Estate in Wong Tai Sin. At that time, the police found 180 resealable plastic bags in your trouser pocket which contained a total of 16.3 grammes of heroin hydrochloride, and two mobile phones. To your credit, you admitted at that stage that you were supplying those drugs to others; you said that you did so for a reward of $3,000. That 16.3 grammes forms the basis of Count 1.

The police then executed a search warrant upon your home address which was in Mei Tak House. They found a box on the table in the living room which contained a further 221 resealable plastic bags of varying amounts of heroin hydrochloride, as well as electronic scales and other items used to traffic in drugs. They amounted to a total narcotic content of 41.36 grammes of heroin hydrochloride and form the basis of Count 2, so that the total amount of dangerous drugs recovered that day was 57.66 grammes.

When interviewed, you said that you did receive the dangerous drugs on 21 January from a friend and you had obtained the items needed to subdivide the drugs yourself before taking them all home with you. You say you packaged the drugs on your own and that your mother and your girlfriend were not present and that they knew nothing at all about the dangerous drugs.

The drugs found upon you and in your home that evening were worth a total of HK$127,000 at the time.

They were fairly professionally subdivided and packaged for onward sale, and it certainly does not look at first blush as if this is something you had done for the first time, but I am persuaded that is most probably correct, given the response of your long-term live in girlfriend to your arrest for trafficking. In any event, I am not sentencing you for what may be an ongoing business in trafficking dangerous drugs, I am sentencing you for what was found upon you and in your home on 23 January 2018.

You are 36 years of age and a resident of Hong Kong. You received a limited education up to Form 2 and you were in employment at some point as a logistics worker, although I was told that you were unemployed at the time of your arrest, and I was also told that you were in financial difficulty at that time because of your father’s death following his illness, and it was to find money for his funeral expenses that meant that you were foolish enough to assist a friend in distributing these drugs.

Given your previous history with drugs, I am not completely convinced of that, but you are being given the benefit of the doubt. Mr Ma has correctly urged the court to take into account the fact that those matters should really have been dealt with at the same time as the sentencing for the other matters known to me in terms of the AOABH and the MOTS. That is because of the chronology that Mr Cheung so kindly provided which indicates that proceedings were not commenced for those earlier matters, the AOABH and the MOTS, until after you had been arrested and detained for this.

It certainly would have been preferable, Mr Au, in the circumstances of this case, for all of the matters to have been dealt together by one sentencing court. It is most unfortunate that that was not the case because it would have had an effect upon sentence. As it is, the court has now been informed that the sentence of 8 months given to you for the other matters resulted in you being incarcerated, and this is where my figures get a bit different, Mr Cheung, but it is not actually going to affect matters at the end of the day.

You would have been incarcerated on that, on the AOABH and MOTS, for 230 days, rather than the 162 days which it is calculated as being 8 months (243 days) less remission of 81 days. So in the normal course of events, you would have expected to serve 162 days for the AOABH and MOTS matters, whereas on my calculation, you actually served an extra 68 days, in fact, when looking at the matter on its own, as if it were dealt wholly separately for this. Of course, if it had been dealt with at the same time as this matter, no doubt the totality principle would have kicked in, even although these were wholly separate offences, when they would have been dealt with, if that had happened.

But these offences that the court deals with today were committed whilst on bail for the AOABH and the MOTS proceedings because they had occurred in April of 2017, although they were not dealt with, as the court has been told, until 18 October 2018, which is a very long time between offending and sentencing. From the chronology provided by the prosecution, I have already alluded to the fact that the sentencing, or the decision to prosecute, was not in fact made until 29 January, and I do not criticise the prosecution at all for the time taken to make a decision on that, or indeed, the time taken between that decision and your ultimate sentencing because you did decide to take that matter to trial, but nevertheless, it has affected the manner in which this court is considering your overall culpability.

Having said that, these offences were committed whilst on bail, it is an aggravating feature, and the court must mark that fact because you are not somebody unknown to criminal proceedings and to the courts, and you would have known full well that you committed these offences whilst on bail, and as such, I am going to mark the fact that you committed these offences whilst on bail by an additional sentence, however, of only 1 month.

Sentencing guidelines for trafficking in heroin hydrochloride can be found in HKSAR v Lau Tak Ming [1990] HKLR 370. On Count 1, for trafficking in between 10 and 50 grammes of heroin hydrochloride, the range of sentencing after trial is between 5 to 8 years. For 16.3 grammes, therefore, the starting point after trial would be just over 5 years and 6 months’ imprisonment. On Count 2, for trafficking 41.36 grammes of heroin hydrochloride, the starting point after trial would be 7 years and 3 months’ imprisonment, and that would make a total of 12 years and 8 months’ imprisonment which clearly does not reflect the criminality of your offending.

If you had faced just one count reflecting the total amount of heroin hydrochloride you were dealing with that evening, ie, the 57.66 grammes, you would have been looking at a starting point after trial of 8 years and 3 months. You will of course receive a one-third discount for your plea at the earliest opportunity, but on this matter there is no other mitigation which can affect the sentence which the court must pass, save of course now, as I have alluded to it, for the court taking into consideration the sentence which you have served in the interim on those other matters.

On Count 1, you will go to prison for 3 years and 8 months. On Count 2, you will go to prison for 4 years and 10 months. 3 years and 3 months of the sentence on Count 2 will run concurrently with the sentence on Count 1 and that should, until Mr Cheung says I have done it incorrectly, make a total of 5 years and 3 months’ imprisonment, but you will serve an extra 1 month for having committed these matters whilst on bail and so that makes a total of 5 years and 4 months.

(Discussion re on calculation for sentence)

COURT: I am intending you to serve, less any remission you get, a total of 5 years, 3 months and 20 days.